Friday, February 19, 2016

Jackbooted Thugs or Game Wardens

Jackbooted Thugs or Game Wardens?

Imagine you are on your farm, ranch, or rural home and out of the blue a Game Warden shows up demanding to look inside your barn, questioning the children, even invading your home to look in your freezer despite being told to leave by first the caretaker, then the homeowners. And the pretext for this invasion of your home and private property? That he heard a gunshot in the area or saw someone carrying a gun or bow.

This is the issue that HB 2859 is trying to stop, the unwarranted invasion of private property without probable cause or search warrant. Were this a sheriff or other law enforcement officer they wouldn’t have the right to barge in on mere suspicion or conjecture. However it gets worse, much worse as other law enforcement agencies have learned to use the absolutely unconstitutional power of the game warden to bypass legal rulings that protect citizens’ constitutional rights.

Game wardens are peace officers in Oklahoma and can enforce all of the laws of the state, not just game laws. But they have increased powers that allow them to protect fish and game as it those creatures belong to the state but are generally fond on private land. The funding for their agency comes from license sales and they are supposed to spend most of their time protecting fish and wildlife, not leading a pack of other officers in to search for drugs. Yet game wardens are constrained by the same laws, rights, and rulings as other police officers if they go outside protecting wildlife.

Probable cause means that a reasonable person would believe that there is reason to suspect criminal activity. Shining a light from a vehicle might well be probable cause to stop a vehicle but slowly driving down a country road is not. If the person is pointing a gun out of that slowly moving vehicle then there is probable cause. The point being that a single behavior generally has to be pretty conclusive to form probable cause.

But Oklahoma game wardens are crossing the line along with other state game wardens and the courts are catching up with the potential problems of allowing game wardens increased leeway.

The Pickle ruling is an Arkansas case that is under appeal by the state of Arkansas. A group of hunters were observed by Arkansas game wardens for two hours and approached at their camp to check licenses and check the guns for the required magazine plugs. One of the hunters, Jimmy Pickle, didn’t have his hunting license on his person so the game warden ran the name through the fish and wildlife system which revealed that there was indeed a valid hunting license, then also ran his name through a criminal background check and found out that Pickle was a convicted felon. Since he had a gun and felons can’t possess guns the game wardens arrested Pickle and searched his body, finding a small amount of meth and a glass pipe. Possession of drugs, possession of drug paraphernalia, and a felon in possession of a firearm were the charges filed against Pickle.

Pickle argued that his Fourth Amendment rights were violated and an appeals court agreed with him. The state immediately appealed the ruling but the state game warden was ordered to stop doing simple license checks on private property. Of course the Arkansas fish and wildlife department is over reacting, nothing in that ruling said that hunters and fishermen couldn’t be checked for licensing or tags. The ruling meant that game wardens couldn’t arbitrarily stop sportsmen to check licenses, that they needed some sort of reasonable suspicion or probable cause. Aside from the lack of clear cut and non discretionary cause to check Pickle’s license the game warden continued to dig into Pickle’s record after he realized that Pickle did indeed have a valid hunting license and ran the criminal background check.

Oklahoma game wardens are arguing that requiring probable cause or reasonable suspicion means it is impossible to do their job. I would say that other law enforcement will say the same thing about Fourth Amendment rulings but compliance is a simple matter of the game wardens having a neutral method of deciding whom to do license checks on instead of allowing wardens to stop everyone they run across. It could be as simple as stopping every fourth hunter or perhaps hunters carrying wild game or fish, but it has to be a written policy and strictly adhered to so that it is neutral.

Some might say HB 2859 will harm wildlife or cut revenue to the game and fish department but this is no different than cop pulling a motorist over for improper lane change in order to take a closer look and question the driver for drug trafficking. The cop is limited to what he can see with his own eyes to develop probable cause for another offense, otherwise the driver is free not to cooperate or answer questions on anything unrelated to the reason that he was pulled over.